Monthly Memo

CAN ONE BE LIABLE FOR E-MAILING

NASTY THINGS OVER THE INTERNET?

            Dr. Polevoy and Dr. Barrett operated websites devoted to exposing health frauds. Ilenas Rosenthal was the director of the Humantics Foundations for Women and operated an Internet discussion group.

            Ms. Rosenthal received and subsequently e-mailed statements made by a Tim Bolen about Drs. Polevoy and Barrett on the websites of two newsgroups devoted to alternative health issues and the politics of medicine but not on the site of her own discussion group. The statement e-mailed by Ms. Rosenthal but written by Mr. Bolen regarding Dr. Barrett was that “he is arrogant, bizarre, closed minded, emotionally disturbed, professionally incompetent, intellectually dishonest, a dishonest journalist, sleazy, unethical, a quack, a thug, a bully, a Nazi, a hired gun for vested interests, the leader of a subversive organization, and engaged in criminal (conspiracy, extortion, filing of a false police report, and other unspecified acts.)” Dr. Polevoy was also described as having similar characteristics.

            The good doctors filed a civil action for libel against Ms. Rosenthal for making defamatory statements in e-mails and internet postings, among other things. Ms. Rosenthal claimed she was protected under freedom of speech. The Alameda County trial court ruled in Ms. Rosenthal’s favor. A California Court of Appeals determined that she could be held responsible for the statements sent on the e-mails. The California Supreme decided differently.

            On November 20, 2006, a California Supreme Court unanimously issued an opinion in the matter of Barrett v. Rosenthal. The Court focused on the federal statute under which the plaintiffs’ (Barrett/Polevoy) claims were filed. Under the federal Communications Decency Act of 1996, Congress declared: “No provider or user of an interactive computer service shall be treated as a publisher or any speaker of any information provided by another information content provider.” The California Supreme Court wrote that “These (Congressional) provisions have been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source.”

            The Court went on to cite a federal case issued by the federal 4^th Circuit Court of Appeals, Zeran v. American Online, 1997, which had also found that Congress did not intend to create liability for a “distributor” of Internet mail under section 230 (c) (1) of the Communications Decency Act of 1996. Allowing for distributor liability “would have a dramatic impact on Internet service providers.” “Congress implemented its intent . . . by broadly shielding all providers from liability for ‘publishing’ information received by third parties. Congress contemplated self-regulation, rather than regulation compelled at the sword of tort liability (i.e., litigation). It chose to protect even the most active Internet publishers, those who take an aggressive role in republishing third party content.” “Thus, the immunity (no personal liability) conferred by Section 230 applies even when self-regulation is unsuccessful, or completely unattempted.”

11/2006                        Sims & Layton